Case No. VFA-0512, 27 DOE ¶ 80,223

August 24, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Robert G. Smith

Date of Filing: July 30, 1999

Case Number: VFA-0512

On July 30, 1999, Robert G. Smith (Smith) filed an Appeal from a determination that the Richland Operations Office (Richland) of the Department of Energy (DOE) issued to him. The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In the determination, Richland released some responsive information to Smith. This Appeal, if granted, would require the DOE to release the remainder of the withheld information.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

In December 1998, Smith applied for the position of Personnel Management Specialist, Vacancy Announcement 99 MP-10, in Richland, Washington. He was not selected for that position. According to Smith, a Richland employee informed him in May 1999 that the vacancy had been canceled, and that the job had been filled internally. (1) Smith indicated that he was never notified of the cancellation. Smith then wrote to Richland’s Office of External Affairs and requested, inter alia, “a copy of the notification of job cancellation, to include date of cancellation and a list of applicants notified of this cancellation, if germane.” Letter from Smith to Office of External Affairs, Richland (May 25, 1999) (Request Letter). Richland released some of the responsive

information, but withheld the names of applicants notified of the cancellation under Exemption 6 of the FOIA. Letter from Richland to Smith (June 29, 1999) (Determination Letter). In this Appeal, Smith challenges Richland’s withholding of the names of all unsuccessful applicants.

II. Analysis

A. Exemption 6

Exemption 6 shields from disclosure “[p]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.§ 552(b)(6); 10 C. F. R. § 1004.10(b)(6). The purpose of Exemption 6 is to “protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982).

In order to determine whether information may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either exemption. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripkis). Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the government. See Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); FLRA v. Department of Treasury Financial Management Service, 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard). Reporters Committee, 489 U.S. at 762-770. See generally Ripkis, 746 F.2d at 3.

1. Privacy Interest

Richland determined that there was a privacy interest in the identity of the unsuccessful job applicants. According to Richland, each applicant made a “personal choice” to apply for the vacant position, and Richland invoked the FOIA to protect that choice from public disclosure. Determination Letter at 2.

Courts have similarly found that the disclosure of the identities of unsuccessful federal job applicants constitutes a clearly unwarranted invasion of personal privacy For instance, Core v. U. S. Postal Service, 730 F.2d 946 (4th Cir. 1984), presents a fact pattern similar to this case.(2) Core was an unsuccessful applicant for a vacancy at the U. S. Postal Service (“the Service”). He argued that the Service had violated hiring regulations, and then requested information about the other unsuccessful job applicants. (3) The Service invoked Exemption 6 and withheld responsive information about the unsuccessful applicants, determining that harm could arise from such a disclosure. The Court upheld the withholding and found that “disclosure may embarrass or harm applicants who failed to get a job.” Core, 730 F.2d at 949. The court reasoned that present or prospective employers or coworkers could learn that others were deemed better qualified for a competitive appointment. Id. See also Barvick v. Cisneros, 961 F. Supp. 1015, 1021 (D. Kan. 1996 ) (upholding agency’s nondisclosure of identifying information on the unsuccessful applicants because it could lead to embarrassment or adversely affect their future employment or promotion prospects) (Barvick); Holland v. C.I.A., 1992 WL 233820, at *13-*14 (D.D.C. Aug. 31, 1992) (finding a privacy interest in the identity of an unsuccessful applicant for position of general counsel). Therefore, we find that there is a substantial privacy interest in the identities of unsuccessful federal job applicants.

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2. Public Interest in Disclosure

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure. The Supreme Court has held that there is a public interest in disclosure of information that “sheds light on an agency’s performance of its statutory duties.” Reporters Committee, 489 U.S. at 773. See Marlene Flor, 26 DOE ¶ 80,104 at 80,511 (1996) (Flor). The requester has the burden of establishing that disclosure would serve the public interest. Flor, 26 DOE at 80,511 (quoting Carter v. Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987)). In his Appeal, Smith stated that release of the withheld information “will further the public interest by shedding light on particular hiring activities, at the Richland [Human Resources Office] HRO, which may be in violation of . . . regulations and Veteran’s Law.” Letter from Smith to Director, OHA (July 3, 1999).

We find that there is a minimal public interest in the release of the withheld information. Smith has not demonstrated how the disclosure of information about unsuccessful job applicants is necessary for the public to evaluate either Richland’s hiring practices or the competence of the individual who received the appointment. Simply alleging that an agency has engaged in violations of hiring regulations does not justify releasing personal information. See Barvick, 941 F.Supp. at 1022 (quoting Hopkins v. U. S. Department of Housing and Urban Dev., 929 F.2d 81, 88 (2d Cir. 1991) (invocation of a legitimate public interest cannot itself justify the release of personal information)). Therefore, we agree with Richland and find that there is a minimal public interest in the disclosure of the responsive material.

3. The Balancing Test

In determining whether the disclosure of law enforcement records could reasonably be expected to constitute an unwarranted invasion of personal privacy, courts have used a balancing test, weighing the privacy interests that would be infringed against the public interest in disclosure. Reporters Committee, 489 U.S. at 762 (1989); Safecard, 926 F.2d 1197 (D.C. Cir. 1991).

We have concluded above that there is a substantial privacy interest at stake in this case. Moreover, we found that there is only a minimal public interest in the release of the names of the unsuccessful applicants. Therefore, we find that the public interest in disclosure of the withheld material is outweighed by the real and identifiable privacy interests of the named individuals.

C. Segregability

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. . . .” 5 U.S.C. § 552(b) (1982). Because Smith requested a list of names, we find that there was no reasonably segregable, factual, non-exempt material available for disclosure.

It Is Therefore Ordered That:

(1) The Appeal filed by Robert Smith on July 30, 1999, OHA Case No. VFA-0512, is hereby denied.

(2) This is a final order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 24, 1999

(1)Richland informed OHA that the vacancy was canceled and then re-issued under a new vacancy number. See Memorandum of Telephone Conversation Between Dorothy Riehle, Richland, and Valerie Vance Adeyeye, OHA Staff Attorney (August 11, 1999).

(2)We note, however, that in this case the applicants were not actually “unsuccessful” because Richland canceled the vacancy.

(3)Core also requested, and received, information about the successful applicants. Core, 730 F.2d at 947.